Decision  Commonwealth v. Richardson

Date:	04/17/2018
Organization:	Massachusetts Supreme Judicial Court

Commonwealth v. Richardson
Supreme Judicial Court, April 17, 2018
(Crimes/Unlawful Cultivation with Medical Marijuana Hardship Cultivation Registration: Sixty-Day Supply)

 The model jury instruction for unlawful cultivation of a class D substance consists of three elements: (1) the substance in question was a class D substance; (2) the defendant cultivated some perceptible amount of that substance; and (3) the defendant did so knowingly or intentionally.  Because there are two theories of unlawful cultivation of medical marijuana where the defendant produces evidence of a valid hardship cultivation registration: (1) unlawful cultivation of more than a sixty-day supply, and (2) unlawful cultivation for nonpersonal use, the jury must be instructed accordingly.

 Unlawful cultivation of more than a sixty-day supply:

Under a theory of unlawful cultivation of more than a sixty-day supply, the Commonwealth must prove four elements beyond a reasonable doubt:

1.     That the substance in question is marijuana;
2.     That the defendant knowingly cultivated the substance;
3.     That the defendant cultivated more than the amount necessary to provide a sixty-day supply of usable marijuana to the patient; and
4.     That the defendant intended to cultivate more than the amount necessary to provide a sixty-day supply of usable marijuana to the patient.

 Unlawful cultivation for nonpersonal use:

Under a theory of unlawful cultivation for nonpersonal use, the Commonwealth must prove three elements beyond a reasonable doubt:

1.     That the substance in question is marijuana;
2.     That the defendant knowingly cultivated the substance; and
3.     That the defendant cultivated the substance with the intent to distribute.

 

Note:

“[W]e note that of the fifteen States that currently permit home cultivation as part of their medical marijuana scheme, Massachusetts is the only State that defines its limit solely in terms of supply per period.  All other such States use plant-based limits.  The only other State to create a home cultivation limit based on supply period, Washington, changed to a plant-based limit after widespread

criticism that the prior rule created uncertainty.”

 

“The Commonwealth reasoned that because the jury found the defendant guilty of possession with intent to distribute, he would be guilty of unlawful cultivation irrespective of whether he grew more than a sixty-day supply.  Without better briefing on the subtle distinction between unlawful cultivation for nonpersonal use and possession with intent to distribute in these circumstances, we decline to consider this theory where it is first raised at oral argument.”